Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, May 6, 2013

Cambridge's Polynices

[N]one shall entomb him or mourn but leave him unwept, unsepulchered, a welcome object for the birds, when they spy him, to feast on at will.

Many an educated reader - and many an educated lawyer in particular - will have encountered the line I've just quoted, as well as the name I have quoted in the title to this post.  These are words spoken by Antigone, apropos an edict prohibiting entombment of her brother, Polynices, in the Attic tragedy that bears her name.  Polynices has made war on his own polis, Thebes, and for this reason Creon, the ruler of Thebes, has decreed he is not to be accorded the rites that both sacred and customary law prescribe.  The 'luckless corpse of Polynices' is to be left to be eaten by carrion-birds.  A resultant clash of contrary obligations - that to obey ruler-posited law on the one hand, that to obey divinely and custom-posited law on the other hand - is of course what renders Antigone's predicament 'tragic' in the classical Greek ('damned if you do, damned if you don't') sense rather than in the watered-down, contemporary sense per which 'tragic' is roughly synonymous with 'unfortunate.'

I'd like to suggest here that a cognate tragedy to Antigone's is now in the course of enactment in Cambridge, Massachusetts, where the family of Tamerlan Tsarnaev, the accused Boston Marathon bomber killed in the course of his apprehension by authorities, is finding it impossible to locate a cemetary at which Mr. Tsarnaev can be properly interred. 

To be sure, there are obviously critical differences between the Tsarnaevs' case and that of Antigone.  One is the irony that in the present instance it is private parties who are refusing proper burial while ultimately a state institution will likely be that which accords it.  Another, related distinction is that the tragic clash of principle in the present instance is not between divine or customary law and royal decree, as in Antigone, but between the former on the one hand and an apparently deeply felt imperative  to express and even 'live out' disgust and disapproval on the other. 

Nevertheless, I think we shall ultimately agree that the similarities between the Tsarnaevs' plight and Antigone's are more salient than are the distinctions.  That is primarily for two reasons.  The first is that in both cases, the clash of principles at work can indeed be understood as a clash between admittedly compelling principles.  The second is that, again in both cases, it seems nevertheless clear which principle must ultimately prevail.

As for the first of these, I trust it is obvious that both 'sides' of Antigone's predicament are compelling.  Divine and customary law in the polis are binding requirements par excellence, while municipal law is for its part a prerequisite to that 'order' which underwrites 'ordered liberty.'  In contemporary Cambridge and human society more generally, by much the same token, custom, a decent respect for (not to mention cherishing of) our fellow citizens and their faiths, and, I believe, what many if not most of us still thankfully consider 'divine' and 'natural' law remain as compelling here and now as they were in the Hellenic world of Sophocles's day.  At the same time, the irreducibly reverential character of any proper funeral rite, combined with the unspeakable monstrosity of what was done in Boston this past month, certainly can make it seem, on the surface at least, as though permitting proper burial would constitute some falling short of full repudiation of the deed now attributed to the dead.  

Ultimately, however, I think the mentioned surface appearance illusory, and this takes me to the second salient similarity that I think we shall find between the cases of Antigone and the Tsarnaev family.  In the case of Antigone, it seems clear to me at any rate that the divine and customary law of Thebes must ultimately prevail in the event of conflict with a monarch's arbitrary and vindictive decree.  And much the same, I believe, can be said even of many conceivable cases in which even bona fide democratically decided legislation offends certain more 'fundamental' precepts, even if in most of these cases the calls will be tougher.  In the case of the Tsarnaev family, by the same token, resolution seems to me similarly straightforward - indeed even moreso.  For, unlike the compellingness of civic decree, that of symbolic repudiation is not predicated upon any determinate necessity - at least not determinate in the sense of 'independent of articulated interpretation.'  What is more, I think that the interpretations of what we are doing that we both can and ought articulate in connection with doing right by the Tsarnaev family is far more plausible than that which today's refusers of proper rites appear to assume.

What do I mean here?  I mean essentially two things, one of them primarily in connection with the previous sentence but one, the other in connection with the previous sentence itself.  

So first, in alluding to 'determinacy,' I mean to say that there is no message of approval - no symbolic condoning of bombing - inherent in according our sisters, brothers, and fellow citizens in the Tsarnaev family the space in which to grieve, pray for, and properly bury their kinsman.  That is particularly so insofar as we, and in particular the proprietors or administrators of what ever cemetary ultimately proves to be the final resting place, make plain that so doing is the reason for ending the current refusal.  The meanings of actions are critically, even if not always solely, what we take, decide, and articulate them to be; and I suggest that respect for and empathy with the Tsarnaev family both is and should be the dominant meaning that will attach to ending the present refusal to let them bury their kinsman.  (And lest you find 'empathy' too strong a word here, please view any clip now available on the web of Tamerlan Tsarnaev's uncle's expressions of distress over not being able to find a resting place for his nephew; it is heartbreaking beyond measure.)    

Second, I think another meaning is worth noting in connection with the case of Tamerlan Tsarnaev - a meaning that I think at least as much there to be seen and appreciated as to be deliberately attributed:  In according the proper funereal respects to Mr. Tsarnaev, I think, we attribute full significance to the deed of which he stands accused, in a way we might not if we simply 'make him disappear.'  Not allowing proper burial - leaving him out for the carrion-birds, so to speak - seems to me to suggest a certain deteriorability or dissipatability in connection even with the dead's alleged deed, as if the wrong will dissolve into nothingness with the body.  It suggests that there is no meaning borne by this man's body or person, hence that no meaning inheres in his actions. 

To continue to hold fast to Tamerlan Tsarnaev's sacred humanity and his soul's persistence, by contrast, in recognizing and embracing his family's sacred right and obligation to do with his body what their (not to mention our) religious laws require, is to accord the permanence and significance of his alleged deed its proper weight.  It is to recognize that this deed is still 'out there,' as it were, still weighing on the moral and spiritual economy of our lives.  And it is also, it bears noting in passing at this site in particular, to recognize the continuing opportunity of the dead to repent, and the hope that they will, in eternity.


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Bob, Could you please cross-post this at Religious Left Law? I was planning on making a similar argument (sans the Antigone analogy however) at RLL and now prefer to defer to your thoughts on the subject. Incidentally, our aversion to "leaving him out for the carrion birds" (so to speak...and literally!), is culturally specific, thus, for example, it is a perfectly proper funerary ritual in Vajrayana (Tibetan) Buddhism:

"Sky burial is a funerary practice in Tibet wherein a human corpse is incised in certain locations and placed on a mountaintop, exposing it to the elements (mahabhuta) and animals – especially predatory birds. The locations of preparation and sky burial are understood in the Vajrayana traditions as charnel grounds. In Tibet the practice is known as jhator (Tibetan: བྱ་གཏོར་, Wylie: bya gtor), which means 'giving alms to the birds.'

The majority of Tibetans adhere to Buddhism, which teaches rebirth. There is no need to preserve the body, as it is now an empty vessel. Birds may eat it, or nature may cause it to decompose. Thus, the function of the sky burial is simply to dispose of the remains. In much of Tibet, the ground is too hard and rocky to dig a grave, and, due to the scarcity of fuel and timber, sky burials are often more practical than cremation. High lamas and some other dignitaries may receive burials so as to honor them in death, but sky burials were standard practice for commoners. [....]

'Sky burial and open cremation may initially appear grotesque for Westerners, especially if they have not reflected on their own burial practice[s]. For Tibetan Buddhists, sky burial and cremation are templates of instructional teaching on the impermanence of life.'

Jhator is considered an act of generosity on the part of the deceased, since the deceased and his/her surviving relatives are providing food to sustain living beings. Generosity and compassion for all beings are important virtues or paramita in Buddhism. Although some observers have suggested that jhator is also meant to unite the deceased person with the sky or sacred realm, this does not seem consistent with most of the knowledgeable commentary and eyewitness reports, which indicate that Tibetans believe that at this point life has completely left the body and the body contains nothing more than simple flesh." [From the Wikipedia entry on "Sky burial" (without references)]

Posted by: Patrick S. O'Donnell | May 6, 2013 5:35:34 PM

Thanks so much, Patrick - such was my plan, and will do. Thanks also for the very interesting observations on sky burial, another version of which, as I understand it, was once practiced among certain Native American tribes. (Doubtless no accident, that, in light of the Asian origin of the indigenous American peoples and the shamanic traditions shared on both sides of the Bering Strait both before and, to a lesser extent, after the life of Gautama.) I thought to mention in the post that what the sacred laws prescribe in re disposition of the dead is indeed faith- and culture-specific, such that it accorded, e.g., Gandhi respect to cremate him while it would be, by contrast, disrespectful to demand cremation of Mr. Tsarnaev in view of Islamic proscription of the same. I hope and trust that readers will bear this faith- and culture-specificity in mind, and also will understand that the same accounts for my use of scare-quotes round the word 'disappear' in the post.

Thanks again and more soon,

Posted by: Robert Hockett | May 6, 2013 5:51:41 PM

Mr. Hockett, Thanks for your post. Could you perhaps provide some further context or authority for the last statement in your post (i.e. "to recognize the continuing opportunity of the dead to repent, and the hope that they will, in eternity.")? I'm not familiar with any Catholic theology or jurisprudence which supports the concept of repentance after death, and would appreciate any reference you can provide so I can further explore this concept. In the Risen Christ. Will

Posted by: Will Esser | May 7, 2013 1:27:19 PM

Thanks, Mr. Esser. On your question, I am alluding to the old doctrine of Purgatory, the contemporary status or rendition of which I imagine that some of our more theologically expert readers will be well suited to elaborate. With any luck, Joseph Anthony will intervene here. His comments to some of my posts around 12-14 April are absolutely first rate, and I very much hope he might comment here too.

Posted by: Robert Hockett | May 7, 2013 1:53:55 PM